Opinion by
Philips, P. J.
In this case the plaintiffs asked twenty instructions, of which the court gave eight. The court also gave twelve instructions on behalf of defendant. We are asked in this case to review all those refused and those given. The habit of counsel in thus multiplying instructions, has time and again been animadverted upon and censured by the supreme court. But instead of curing the evil practice, it seems to be on the increase. If the court decline to accept the pressing invitation of counsel to look carefully and minutely through such a labyrinth of propositions to discover, if possible, some inconsistency [54]*54or incongruity as the basis of error, it must be understood that the court is satisfied that, taking the instructions altogether which the trial court gave, the issues were fairly presented, or that they are immaterial, and that our duty is to administer the law in the interest of justice. ■
The case seems to have been tried throughout by the' plaintiffs on the theory that the motive and intent of the defendant in making the deed to Tootle, Hosea & Co. was' the main issue, • and so the instructions given by the court, as well as those refused; placed the case principally on the theory that if defendant intended to prefer one creditor to another, and to postpone one creditor until another was paid, etc., it was sufficient to maintain the attachment.
As, under the undisputed facts of record, the deed in' question, whatever it may be called, had been fiiade, and the real ground of controversy is as to the effect of the instrument, the inquiry should be limited to the seventh clause of section 398 of the Attachment act.
That inquiry isHas the defendant fraudulently conveyed or assigned his property -or 'effects so as to hinder' or delay his creditors? If this deed was fraudulent in and of itself, as matter of law it would be a fraudulent conveyance or assignment within the meaning of said section. And if the judgment of the law denounced it as fraudulent, it would support that allegation of the affidavit. — Reed v. Pelletier, 28 Mo. 177.
The intent, the motive which prompted the conveyance or assignment, in the absence of a secret trust or understanding dehors the instrument, could have no effect, because the intent to defraud might have been entertained by the grantor and yet the legal effect, of the deed make valid the conveyance, so . that as matter of law it would and could not hinder or delay any creditor.
It is to be borne in mind that the intent,- the motive of the grantor, is applied only to instances under the 5th and 6th clauses of said section concerning attachments. So Richardson, J., in Reed v. Pelletier, supra, said:
[55]*55“There are thirteen cases in which an attachment may issue under our statute, and it will be observed that the ‘intent’ of the party liable to the writ is not a necessary ingredient except for the causes enumerated in the fifth and sixth clauses of the first section. The affidavit will be good if it follows the language of either of the clauses, and it is never necessary to prove more than the party is required to swear to. If the attachment is based on either the seventh, eighth, ninth, or tenth clauses, it will be sustained on proof that the defendant fraudulently had or was about fraudulently to do any of the prohibited acts; and whether the act be fraudulent will depend on the judgment which the law pronounces upon it.”
This section of the statute again came under review; in the supreme court of this state in the case of Bullene v. Smith (73 Mo. 151), where the proposition is well sus-' tained that each of the several clauses of said section presents a separate, distinct, and independent ground of attachment; and that the legislature did not employ the several specified grounds as convertible terms. Each enumeration constitutes a cause of action and each of the terms employed possesses its own peculiar meaning and office in law. Therefore, the supreme court holds that a fraudulent disposition of property will not support a charge of a fraudulent conveyance or assignment, and vice versa.
Now there is no just pretence in the case at bar of any other attempt to transfer the property in question, than what is expressed or consummated by the written instruments in evidence. All other allegations, therefore, of fraud contained in the affidavit and the issues taken thereunder, may be eliminated from this inquiry. Nor does the proof, giving to it the most rigid scrutiny. in quest of the evil design of the defendant, in our judgment warrant any jury in finding there existed in the breast of the defendant any purpose inconsistent with' the language employed in the written instrument. We fail to discover in this record any tangible proof of the [56]*56existence of any secret trust or hidden arrangement between the parties for the benefit or protection of the defendant against the just rights of his creditors, outside of the papers themselves.
The fact that the deed contains a provision that any surplus remaining after the satisfaction of the grantor’s debts should be returned or paid to him, cannot be held .to be a fraudulent reservation to his use as against creditors, for that is precisely what the law, in the absence of any such stipulation, would direct. He reserves to himself no interest as against any of his creditors or the assignee, but only stipulated that the surplus, if any after satisfying all of his creditors, should be returned to him. This the law would accomplish for him with or without such express provision. And what the courts would enforce cannot be held to be fraudulent. — Burrill on Assignments, 4 ed. sects 206, 207..
This case, in this respect, is unlike that of Bigelow et al. v. Stringer et al. (40 Mo. 195), in its facts. There it appeared on the face of the deed that the debtor had conveyed an amount of property largely in excess of the aggregate of his debts; and by the very terms of the instrument, he tied up his property in the hands of the trustee, postponing his general creditors, for two years, manifesting thereby a purpose to secure to himself an increased surplus; again, by delaying and hindering his creditors in the collection of their debts. That was a fraud in law apparent on the face of the instrument. We fail to discover in this record, fairly and reasonably interpreted, any such disparity between the value of the property conveyed and the aggregate of the defendant’s debts as would warrant the impeachment of the deed on .that ground. In fact it is not too much to say, on this record, in view of the actual results of sales of such property under trustees or assignees, that if the creditors should realize the amount of their debts it would be quite unusual.
Nor are we able to perceive how the fact of the execution of the bill of sale, which Campbell induced the defendant to make, after the execution, delivery, and [57]*57recording of the deed, can be construed as an abandonment of the assignment. The transfer by deed was an accomplished fact, and no subsequent act of the debtor, without the consent of all parties thereto, could effect the legal operation of the consummated conveyance. Nor do we think it just, under the circumstances disclosed by the evidence, to say that it furnished such proof of a fraudulent combination between the debtor and the trustee, as to have warranted the jury in pronouncing a verdict thereon in favor of the plaintiffs.
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Opinion by
Philips, P. J.
In this case the plaintiffs asked twenty instructions, of which the court gave eight. The court also gave twelve instructions on behalf of defendant. We are asked in this case to review all those refused and those given. The habit of counsel in thus multiplying instructions, has time and again been animadverted upon and censured by the supreme court. But instead of curing the evil practice, it seems to be on the increase. If the court decline to accept the pressing invitation of counsel to look carefully and minutely through such a labyrinth of propositions to discover, if possible, some inconsistency [54]*54or incongruity as the basis of error, it must be understood that the court is satisfied that, taking the instructions altogether which the trial court gave, the issues were fairly presented, or that they are immaterial, and that our duty is to administer the law in the interest of justice. ■
The case seems to have been tried throughout by the' plaintiffs on the theory that the motive and intent of the defendant in making the deed to Tootle, Hosea & Co. was' the main issue, • and so the instructions given by the court, as well as those refused; placed the case principally on the theory that if defendant intended to prefer one creditor to another, and to postpone one creditor until another was paid, etc., it was sufficient to maintain the attachment.
As, under the undisputed facts of record, the deed in' question, whatever it may be called, had been fiiade, and the real ground of controversy is as to the effect of the instrument, the inquiry should be limited to the seventh clause of section 398 of the Attachment act.
That inquiry isHas the defendant fraudulently conveyed or assigned his property -or 'effects so as to hinder' or delay his creditors? If this deed was fraudulent in and of itself, as matter of law it would be a fraudulent conveyance or assignment within the meaning of said section. And if the judgment of the law denounced it as fraudulent, it would support that allegation of the affidavit. — Reed v. Pelletier, 28 Mo. 177.
The intent, the motive which prompted the conveyance or assignment, in the absence of a secret trust or understanding dehors the instrument, could have no effect, because the intent to defraud might have been entertained by the grantor and yet the legal effect, of the deed make valid the conveyance, so . that as matter of law it would and could not hinder or delay any creditor.
It is to be borne in mind that the intent,- the motive of the grantor, is applied only to instances under the 5th and 6th clauses of said section concerning attachments. So Richardson, J., in Reed v. Pelletier, supra, said:
[55]*55“There are thirteen cases in which an attachment may issue under our statute, and it will be observed that the ‘intent’ of the party liable to the writ is not a necessary ingredient except for the causes enumerated in the fifth and sixth clauses of the first section. The affidavit will be good if it follows the language of either of the clauses, and it is never necessary to prove more than the party is required to swear to. If the attachment is based on either the seventh, eighth, ninth, or tenth clauses, it will be sustained on proof that the defendant fraudulently had or was about fraudulently to do any of the prohibited acts; and whether the act be fraudulent will depend on the judgment which the law pronounces upon it.”
This section of the statute again came under review; in the supreme court of this state in the case of Bullene v. Smith (73 Mo. 151), where the proposition is well sus-' tained that each of the several clauses of said section presents a separate, distinct, and independent ground of attachment; and that the legislature did not employ the several specified grounds as convertible terms. Each enumeration constitutes a cause of action and each of the terms employed possesses its own peculiar meaning and office in law. Therefore, the supreme court holds that a fraudulent disposition of property will not support a charge of a fraudulent conveyance or assignment, and vice versa.
Now there is no just pretence in the case at bar of any other attempt to transfer the property in question, than what is expressed or consummated by the written instruments in evidence. All other allegations, therefore, of fraud contained in the affidavit and the issues taken thereunder, may be eliminated from this inquiry. Nor does the proof, giving to it the most rigid scrutiny. in quest of the evil design of the defendant, in our judgment warrant any jury in finding there existed in the breast of the defendant any purpose inconsistent with' the language employed in the written instrument. We fail to discover in this record any tangible proof of the [56]*56existence of any secret trust or hidden arrangement between the parties for the benefit or protection of the defendant against the just rights of his creditors, outside of the papers themselves.
The fact that the deed contains a provision that any surplus remaining after the satisfaction of the grantor’s debts should be returned or paid to him, cannot be held .to be a fraudulent reservation to his use as against creditors, for that is precisely what the law, in the absence of any such stipulation, would direct. He reserves to himself no interest as against any of his creditors or the assignee, but only stipulated that the surplus, if any after satisfying all of his creditors, should be returned to him. This the law would accomplish for him with or without such express provision. And what the courts would enforce cannot be held to be fraudulent. — Burrill on Assignments, 4 ed. sects 206, 207..
This case, in this respect, is unlike that of Bigelow et al. v. Stringer et al. (40 Mo. 195), in its facts. There it appeared on the face of the deed that the debtor had conveyed an amount of property largely in excess of the aggregate of his debts; and by the very terms of the instrument, he tied up his property in the hands of the trustee, postponing his general creditors, for two years, manifesting thereby a purpose to secure to himself an increased surplus; again, by delaying and hindering his creditors in the collection of their debts. That was a fraud in law apparent on the face of the instrument. We fail to discover in this record, fairly and reasonably interpreted, any such disparity between the value of the property conveyed and the aggregate of the defendant’s debts as would warrant the impeachment of the deed on .that ground. In fact it is not too much to say, on this record, in view of the actual results of sales of such property under trustees or assignees, that if the creditors should realize the amount of their debts it would be quite unusual.
Nor are we able to perceive how the fact of the execution of the bill of sale, which Campbell induced the defendant to make, after the execution, delivery, and [57]*57recording of the deed, can be construed as an abandonment of the assignment. The transfer by deed was an accomplished fact, and no subsequent act of the debtor, without the consent of all parties thereto, could effect the legal operation of the consummated conveyance. Nor do we think it just, under the circumstances disclosed by the evidence, to say that it furnished such proof of a fraudulent combination between the debtor and the trustee, as to have warranted the jury in pronouncing a verdict thereon in favor of the plaintiffs. It is but fair to presume that Campbell supposed from the telegram received that the firm’s lawyer had advised that the deed made might not avail for the protection of his house, and that he sought by taking the bill of sale to strengthen his case. That it was not designed to constitute an abandonment of the deed, is manifested by the fact that it was expressly stipulated on the back, of the bill of sale that it should not so operate.
The issue, on trial, being: had the defendant.fraudulently conveyed or assigned his property or effects so as to hinder or delay his creditors, it mattered not what opinion the grantor or assignor entertained as to the import of the terms employed in the instrument of conveyance. Its construction and effect are for the court as a question of law. If, as a matter of law, the effect and operation of the deed constituted an assignment for the benefit of creditors generally, pari passu, it is difficult to conceive how it can be said the defendant has fraudulently assigned his property so as to hinder or delay his creditors. The law, on the contrary, favors such assignments, as they operate for the protection and equality of all the creditors. — Milliken v. Dart, 26 Hun. 24.
There does not appear to be any serious controversy between counsel that the legal effect of the deed is an assignment under the statute; and such, we are of opinion, is its correct construction. — State ex rel. v. Benoist at al., 37 Mo. 500, 508; Burrill on Assign., sects. 2, 3, et seq.; Page v. Smith, 24 Wis. 371, 372; Lord v. Devendorf, 54 Wis. 491; Norton v. Kearney, 10 Wis. 443.
Campbell appears to have qualified as assignee under [58]*58the deed. Then by virtue of the statute, the transfer inured to the benefit of all creditors, pari passu, notwithstanding the expressed desire of the debtor to prefer one of his named creditors. — Rev. Stat., sect. 354; Hard-castle v. Fisher, 24 Mo. 70; Shapleigh v. Baird, 26 Mo. 326; Crow v. Beardly, 68 Mo. 455; Lord v. Devendorf, supra.
Should the plaintiff maintain his action he thereby seeks to accomplish that of which he complains, a preference over the other creditors, — an inequality and injustice which it is the design of the assignment law to prevent. It is held in New York that an attachment cannot be levied on property in the hands of an assignee under a general assignment of the debtor, notwithstanding the assignment is fraudulent in law. — Thurber v. Blank, 50 N. Y. 80; Smith v. Longmire, 24 Hun. 257.
Appellants make the objection to the assignment that the assignor failed, at the time of the execution of the instrument, to make a statement accompanying it, as required by statute. — Rev. Stat. sect. 362. The deed was executed and put to record on the 6th day of December, and the required statement was made on the 8th. We do not think this delay of the assignor would defeat the conveyance in favor of the creditors, as they had no control of the assignor in performing a duty imposed on him by the statute, after the making of the deed.— Hardcastle v. Fisher, supra; Duvall v. Raisin, 7 Mo. 499; Robert v. Casey, 25 Mo. 590.
We are of opinion that on the real issue .in this case the plaintiffs had a fair trial, and that the ends of justice will be best subserved by affirming the judgment of the circuit court, which is accordingly done.
Ellison, J., concurs; Hall, J., not sitting.